State of New South Wales v Hamze [2025] NSWCA 22

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: State of New South Wales v Hamze [2025] NSWCA 22 Hearing dates: 20 February 2025 Date of orders: 27 February 2025 Decision date: 27 February 2025 Before: Bell CJ at [1]; Ward P at [2]; Kirk JA at [3] Decision: (1) Appeal allowed. (2) Order 1 made by Yehia J on 20 January 2025 dismissing the amended summons filed on 29 August 2024 is set aside. (3) Remit the proceedings to the Common Law Division, to be redetermined according to law. Catchwords: HIGH RISK OFFENDERS – extended supervision orders – appeal against Supreme Court's refusal of application – whether offence against s 33A(1) of Crimes Act 1900 (NSW) is a "serious violence offence" defined in s 5A(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) – elements of claimed index offence necessarily such as to satisfy the requirements of s 5A(1)(a), even though not expressed in that way STATUTORY INTERPRETATION – principle of legality inapplicable to ss 5A and 5B of Crimes (High Risk Offenders) Act 2006 (NSW) – in any event would not outweigh significance of text, context and purpose CRIMES – attempt – if person discharges firearm with intent to cause grievous bodily harm they have necessarily at least undertaken an act not merely preparatory towards commission of crime of engaging in conduct causing grievous bodily harm with intent to do so Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW), s 3-4A, 5A, 5B, Pt 2, s 22, 23 Crimes Act 1900 (NSW), ss 33(1)(b), 33A(1) Crimes (High Risk Offenders) Amendment Act 2016 (NSW) Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) High Risk Offenders Legislation Amendment Act 2024 (NSW) Cases Cited: Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Lynn v State of New South Wales [2019] NSWCA 300 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179; [2014] HCA 24 Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63 R v Mai (1992) 26 NSWLR 371 R v Russell [1933] VLR 59 State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311 State of New South Wales v Dennis (2024) 114 NSWLR 215; [2024] NSWSC 388 State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86 Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 2013 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2016 New South Wales, Department of Justice and Attorney General, Review of the Crimes (Serious Sex Offenders) Act 2006, (November 2010) New South Wales, Sentencing Council, High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, (May 2012) Category: Principal judgment Parties: State of New South Wales (Applicant) Wesam Hamze (Respondent) Representation: Counsel: Z Heger SC and J Curtin (Applicant) J Stratton SC and H Blake (Respondent)